3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
Parties to the marriage and spouses may arrange their relationship in terms of property by means of a marital agreement for the duration of their matrimonial relationship. (Art. 4:34 (1) of Act V of 2013 on the Civil Code [hereinafter: Civil Code]).
The function of the marriage contract is to permit the parties to the marriage or the spouses to define a property regime - in lieu of marital community of property - with a view to governing their property relationships during the marriage from the time specified in the agreement. In the marriage contract the parties may define several different property regimes relating to certain specific assets, and they may even deviate from the rules on statutory and optional property regimes, if such deviation is not precluded by the Civil Code. (Art. 4:63 of the Civil Code)
The Civil Code regulates two optional matrimonial property systems in detail: the marital property acquisition regime and the separation of property system, but in a matrimonial property contract it is not mandatory to choose one of these systems. (Art. 4:69-4:73 of the Civil Code)
The parties to the marriage or the spouses may make prior arrangements for the use of the common home of the spouses for the dissolution of the marriage or the termination of the matrimonial relationship. The agreement shall be considered valid if executed in an authentic instrument or in a private document countersigned by an lawyer. The parties shall also have the option to make arrangements for the use of the common home in the marriage contract. (Art. 4:78 of the Civil Code)
However, it is contrary to good morals and therefore null and void if a contract gives almost all of the separate assets and all of the common assets to one spouse without real compensation to the other spouse.
3.2. What are the formal requirements and who should I contact?
The marriage contract is valid if it is an authentic instrument, in which case it has to be drawn up by a civil law notary, or a private instrument, in which case it has to be countersigned by a lawyer. (Art. 4:65 (1) of the Civil Code). The approval of the guardian authority is required for the validity of marriage contracts, if the spouse is under the age of eighteen years or his/her capacity in respect of making legal statements relating to property has been partially limited. (Art. 4:64 (2) of the Civil Code)
3.3. When may the contract be concluded and when does it come into effect?
The spouses may enter into a marriage contract personally prior to or after the marriage. If it is concluded prior to marriage, it comes into effect upon commencement of the joint marital life of the spouses. If it is entered into after marriage, it takes effect after it has been signed, unless otherwise provided by the spouses. (Art. 4:64 (1) of the Civil Code)
A marriage contract shall not contain any clause having retroactive effect for changing, to the detriment of a third party, any obligation a spouse may have in dealing with third parties arising before the marriage contract was concluded. (Art. 4:67 (1) of the Civil Code)
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
The spouses may amend or terminate the marriage contract during their matrimonial relationship. Any amendment to and the termination of marriage contracts shall be governed by the provisions on the scope and validity of contracts. (Art. 4:66 of the Civil Code)
3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?
[This information is valuable for international spouses, who have since the European Regulation (EU) 2016/1103 of 24 June 2016 went into force on 29 January 2019 have the possibility to make a choice of law with retroactive effect, see article 22 par. 3 and 4 of the regulation. It is important to know if the national law accepts the making of a matrimonial contract during marriage with retroactive effect as well, so the choice of law and the matrimonial contract can both have retroactive effect.]
Yes, but the matrimonial contract shall not contain any clause having retroactive effect for changing, to the detriment of a third party, any obligation a spouse may have in dealing with third parties arising before the matrimonial contract was concluded. (Article 4:67 (1) of the Civil Code).
